U.S.: Wait on health care review

Posted Mon, March 14th, 2011 8:11 pm by Lyle Denniston

The Obama Administration told the Supreme Court Monday evening that federal appeals courts are moving rapidly to review the constitutionality of the new health care law, so there is no need for the Justices to step in to decide the issue ahead of the lower courts. Urging the Court to reject the state of Virginia’s plea for a ruling prior to any decision by the Fourth Circuit Court, the Administration’s new brief said Virginia had offered “no persuasive reason for this Court to proceed without the benefit of review by the courts of appeals.”

Noting that Virginia’s challenge is aimed only at the law’s mandate that virtually every American obtain health insurance by 2014, the Administration said: “There will be ample time before 2014 for this Court to decide whether to grant review in the normal course and, if it does so, to issue a decision.” There is no chance the Court would hear the case in the current Term anyhow, the brief said, since Virginia has not asked that its request be expedited.

It is possible, the new filing said, that one of the cases now moving ahead in the appeals courts could be heard in the Term starting next Oct. 3. The Fourth Circuit, the brief added, “is among the fastest courts of appeals,” and it already has set oral argument on two Virginia cases, including the state’s, for May 10.

The government also contended that Virginia’s quick appeal has none of the characteristics of prior cases in which the Court has granted review of an issue without waiting for appeals courts to resolve it. Most of those involved true emergency situations, the brief asserted.

But, even if the Court were inclined to grant review of the health care controversy now, the brief said, the Virginia case would not be a proper one in which to do so. There is, it argued, a basic question of whether Virginia even had a right to bring its court challenge to the insurance-purchase mandate, and that issue “could readily prevent the Court from reaching the merits” of the challenge the state has mounted.

Since Virginia is only challenging the insurance-purchase requirement, and since that provision only applies to individuals, not states, the brief said, Virginia has no right to go to court to stand in for its citizens when they are bound by the operation of a federal law.

Virginia’s reliance on a new state law, declaring that no Virginia resident can be required to have health care coverage, the brief argued, was only an effort to create a right for the state to go to court to contest the federal mandate. No matter how Virgina phrased its objection to the federal mandate, the government asserted, its lawsuit raised only “abstract questions of political power, of sovereignty, of government.”

The brief noted that the government is contesting, in the Circuit Court, Virginia’s right to bring its challenge, and the Justices “would benefit from having that court’s considered views” on that before deciding whether to hear itself Virginia’s appeal.

Virginia will have a chance to reply to the government’s opposition before the Justices act on the case. It is likely that the case will be scheduled for the Justices’ initial consideration late this month or in April.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.